Representative Matters

Berry’s Creek Study Area (Ventron/Velsicol Operable Unit 2), NJ. We are common counsel to a group of over 100 PRPs with respect to sediment contamination in a roughly 12-square-mile area of wetlands and tributaries inside the Hackensack River watershed. Our work for the group has included the provision of guidance and support on group objectives and strategies, preparation of the necessary organizational documents, assistance with the raising of funds for group activities, managing the agendas and meetings of multiple group committees and work groups, preparation and negotiation of consultant contracts and property access agreements, supervision of PRP investigation activities, the negotiation of EPA administrative orders on consent for scoping activities and an RI/FS, and review of draft RI/FS deliverables.

Big John’s Salvage-Hoult Road, WV. We helped a major oil and gas company settle federal and state government response action and response cost claims and potential contribution claims of other PRPs, including an unusual degree of protection against future claims at a site where a final ROD had not yet been issued. The matter was made more complex by the presence of a former facility of the client immediately adjacent to the site and the need to define site boundaries separate from property boundaries.

Calcasieu Estuary, LA. We have represented for a number of years a chemical industry client with respect to a sediment cleanup and natural resource damages matter in Louisiana involving mercury, other heavy metals, and PCBs. Among other things, we helped the client organize a PRP group, implement a corrective action study overseen by the Louisiana Department of Environmental Quality (LDEQ) that resulted in the agency selecting the alternative recommended by the companies, negotiate a cooperative agreement with LDEQ for implementation of the selected remedy, and reach a final settlement with other PRPs on remediation costs. We continue to assist the client with NRD issues and an EPA cost recovery claim.

Cardington Road Landfill (aka Sanitary Landfill Co.), OH. We helped the PRP group at this site negotiate an AOC for performance of the RI/FS, an AOC for performance of the remedial design, and a consent decree for performance of the remedial action for this site, ensuring that the group had the maximum available influence over the site remedy. We also assisted with preparation of the RI/FS reports, comments, and other documents that resulted in an acceptable remedy for the site. We continue to assist with O&M issues and institutional controls at the site and peripheral properties.

CERCLA Litigation. We are defending a major chemical company in a CERCLA action currently on appeal in the Second Circuit. The action was brought by an owner of a chemical manufacturing facility seeking to recover costs incurred to clean up PCBs allegedly present at a West Virginia site. The matter involves novel issues regarding CERCLA statutes of limitations and encompasses issues related to the National Contingency Plan and the equitable allocation of cleanup costs among potentially responsible parties. Both parties filed an appeal of the trial court’s judgment following a four-day bench trial.

City of Riviera Beach, FL. We represented the City in a dispute with an international electronics manufacturer arising from contamination of the City’s water supply due to releases of solvents from an electronics plant that the manufacturer owned. We mediated with the defendant and advocated for the City in public meetings, in Congress, and in the Executive Branch. The City ultimately did not file suit, but we helped the City achieve a substantial remedy that the defendant implemented.

Lower Fox River and Bay of Green Bay, WI. In 1994, the federal natural resource trustees started a formal NRD assessment at this site, which includes 39 miles of the Fox River. In 2000, those trustees released a Restoration Compensation and Determination Plan suggesting that a handful of paper companies, including our client, were responsible for $176-330 million in restoration costs. EPA and the State subsequently issued an RI/FS and two Records of Decision calling for dredging of millions of cubic yards of sediment. Over more than a decade, we helped the largest paper company on the river resolve its potential liabilities to the state and federal trustees and to EPA. After negotiating a draft consent decree to settle the state trustees’ potential NRD claims, we expanded the settlement to include the potential federal and tribal NRD claims for an estimated total cost to our client of $12.5 million (including assessment costs and some EPA costs); other PRPs settled much later for significantly greater costs. We took a leading role in using the Remedial Design process to secure an EPA amendment of its original remedial action decision, thereby reducing the estimated cost of the agency’s remedy by hundreds of millions of dollars. A subsequent partial settlement with EPA and the state protected our client against other substantial EPA cost and remedial action claims.

Major Pacific Northwest Sediment Site. We successfully prosecuted a state Department of Transportation for its failure to contribute to a major sediment contamination remediation site. In doing so, we recovered for our client—a joint defense group of utilities—more than $8 million, including attorneys’ fees.

Malone Service Company, TX. We helped the PRP group complete an RI/FS and avoid the application of land disposal restrictions to the remedy. We also helped the group raise over $13 million through cash-out settlements with other PRPs, settle potential NRD claims relating to an affected wetland and certain uplands, and negotiate an RD/RA consent decree with EPA for implementation of the selected $56 million remedy, which largely adopted the approach supported by the group’s RI/FS and incorporated an efficient design/build approach. The consent decree shielded the group from about $13 million in EPA past costs and provided $4.5 million in future cost reimbursement to the group. We provided assistance throughout the RD/RA process, including with respect to relocation of an abandoned cemetery and other challenges. RA construction was completed for less than the ROD cost estimate.

Marion Bragg Landfill, IN. We assisted this PRP group in negotiating a remedial action consent decree in which EPA agreed to provide up to $1.5 million in mixed funding and agreed to seek all pre-consent decree costs from non-settlors. The deal enabled the group to move ahead expeditiously with the required remedial activities, and was so financially advantageous to the group that, based on our analysis of probable litigation costs and risks, we recommended, and the group agreed, to forego pursuing non-settlors.

Massena Foundry/St. Lawrence River, NY. We helped a major automobile manufacturer address various EPA and NYDEC demands regarding a foundry located adjacent to the St. Lawrence River and the lands of the St. Regis Mohawk Tribe, including with respect to a substantial area of PCB-contaminated river sediments.

Mother Brook, MA. After a six week trial, a federal jury agreed with us that our client, a major global manufacturer and one of several defendants, had no responsibility under the Massachusetts equivalent of the federal Superfund law for the $12 million cleanup of PCBs that had been discharged into a Boston waterway.

Natural Resource Restoration Projects. In the context of an NRD enforcement effort by federal, state, and tribal natural resource trustees, we helped a leading manufacturer of wooden doors identify, fund, and develop the first restoration bank for NRD offsets. The bank was used to offset the claimed liabilities of nearly 20 parties. It was built under contract by a regional municipality, using settlement funds from those parties. The project was successful to the point that our client’s NRD liabilities were almost entirely offset by the returns received from sale of the restoration credits.

Pfohl Brothers Landfill, NY. As litigation counsel for the plaintiff PRP group at this site, we engaged in an intensive effort over several years to investigate and depose additional PRPs (including municipalities), bringing 14 additional major PRPs into the client group. We carefully evaluated the group’s claims against the remaining potential defendants and ultimately was able to focus the contribution claims on a few remaining major PRPs. We obtained a decision in favor of our client group including favorable holdings on key hazardous waste and corporate successorship issues.

Portland Harbor Superfund Site, OR. We serve as the co-chair of the alternative dispute resolution (ADR) process for the Portland Harbor Superfund Site – the largest Superfund site west of the Mississippi – while representing two key clients. Our team is responsible for leading a group of nearly 100 parties in developing defenses and negotiating with EPA over an aquatic sediments cleanup estimated to cost more than $2 billion. We helped to manage the design and implementation of an allocation process with the goal of achieving a negotiated performance offer and settlement with EPA. We also are leading the defense of litigation initiated by the Yakama Nation against 25 parties for recovery of NRD and assessment costs at the site.

Puget Sound Energy (PSE). We defended PSE, one of the Northwest’s leading utilities, on multiple manufactured gas plant remediation/cleanup sites, including in very challenging Superfund aquatic cleanup sites. At one of these sites, we worked with PSE and consultants to develop and secure EPA approval for an innovative sediment capping technology that reduced the cleanup cost for the site by over 50%. We helped PSE achieve remediation and consent decree compliance ahead of time and under budget.

Saginaw River and Saginaw Bay, MI. We assisted a major automobile manufacturer settle state and federal response action and NRD claims arising from the presence of PCBs in Saginaw River and Saginaw Bay sediments and biota. The state had initiated an NRD lawsuit due to statute of limitations concerns; the federal trustees and EPA were brought into the settlement for a global resolution of response action and NRD claims relating to the river and bay.

Sheboygan River, WI. Working closely with our manufacturing client’s technical consultants, we prepared comments to the National Remedy Review Board regarding EPA’s initially conceived sediment remedy, resulting in a change to the remedy. We then prepared comments on the Proposed Remedial Action Plan that led to another change in the remedy, which reduced estimated costs by about $20 million. We subsequently negotiated an administrative consent order between our client and EPA for a removal action on the plant site, and then negotiated a partial remedial action consent decree with EPA for work in the Upper River and floodplains. Finally, we negotiated a precedent-setting “work substitution” amendment to the decree to support a liability transfer.

Skinner Landfill, OH. On behalf of a PRP group and in close cooperation with EPA, we brought suit against over 90 non-settling PRPs, including several municipalities. We promptly obtained a court order requiring all of the parties to participate in a mandatory ADR process, which resulted in one defendant assuming a greater share of responsibility than that assumed by our entire client group, and in other settlements with all but a handful of the remaining parties. We were able to reach settlements with several municipalities as well, at shares greater than those defined by EPA’s Municipal Settlement Policy.

Superfund Trust Fund Theory Appellate Litigation. We represented certain trusts in federal court and before the 2nd Circuit Court of Appeals and the Supreme Court (cert. denied) in a suit seeking environmental response costs from the trusts for two Superfund sites in Washington with respect to which plaintiffs had paid a $50 million settlement. The court found that the complaints were barred by the three-year statute of limitations and the trust fund theory does not apply to CERCLA claims.

Tittabawassee River, MI. We represented a large chemical company with respect to multiple issues arising from contaminated sediments and floodplains along more than 30 miles of river in Michigan. We helped the company develop an overall strategy to address response action and NRD issues, negotiate an administrative order on consent with EPA for investigation and design activities, and negotiate a detailed cooperative natural resource damages assessment agreement with federal and state natural resource trustee agencies.

Waukegan Harbor, IL. We helped a marine engine manufacturer negotiate a remedial action consent decree with EPA regarding onsite soil cleanup work and dredging of a portion of Waukegan Harbor. The remedy included converting a boat slip into an onsite confined disposal facility for sediments highly contaminated with PCBs, an essential element of the settlement that required a novel solution under both the Toxic Substances Control Act and Superfund. The consent decree also settled potential NRD claims for injuries to sediments and submerged lands.

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